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Wednesday, October 21, 2009

Ind. Courts - "Lawyers clash over legality of ordinance governing Indiana “adult superstore” -- stories display some confusion, but by whom?

Harold J. Admas story today in the Louisville Courier Journal begins with a great lede:

While a gallery bused in by an anti-pornography organization looked on, attorneys for Theatair X and the town of Clarksville clashed over the legality of the “adult superstore” during a hearing Tuesday before a special judge.
See also this ILB entry from March 19th, headed "Theatair X attorney says ordinance unconstitutional in Clarksville."

More from today's story:

The hearing was on whether the town of Clarksville can enforce a 2005 ordinance that imposes restrictions on sexually oriented businesses. * * *

Theatair X, the only existing business covered by the ordinance, challenged it as illegal and unconstitutional after town officials cited owners last year for operating at prohibited hours and not making required changes inside the store.

Theatair X, which shows adult movies, offers live peep shows and sells adult DVDs, magazines and novelties, is open 24 hours a day, 7 days a week.

The Clarksville ordinance requires such businesses to be closed between the hours of 1 a.m. and 8 a.m. Monday through Saturday and between 1 a.m. and noon on Sundays.

On Tuesday in Salem, Theatair X asked the special judge hearing the case, Washington County Judge Robert Bennett, to dismiss the citations and void the ordinance. * * *

H. Louis Sirkin, an attorney for Theatair X, argued that the ordinance is illegal under Indiana law because its zoning provisions were enacted without the required certification of the local plan commission. For that reason, Sirkin said, the entire ordinance must be thrown out. “It’s invalid. It’s void,” he said.

Attorney Christopher Sturgeon, representing Clarksville, conceded that “the zoning provisions of the ordinance were not validly enacted.” But Sturgeon argued that a section of the ordinance that declares each part to be separate should allow the regulatory portion to survive.

Sirkin also argued that Clarksville did not conduct studies to prove claims in the ordinance that sexually oriented businesses lead to increases in illegal and unhealthful behavior. That is part of a test federal courts have used to determine whether such laws serve “a substantial government interest.”

Sirkin said Theatair X has been in existence at the same location on U.S. 31 near Veterans Parkway for more than three decades and “there’s been no increase in criminal activity there.”

Sturgeon countered that Clarksville used research from other cities, a practice upheld by federal courts in other cases. “The town does not have to conduct studies…of this business location,” he said.

Judge Bennett asked both sides “whether we’re premature here” in seeking a ruling on the constitutionality of the Clarksville ordinance. He noted that separate cases involving an Indianapolis business and the business formerly known as New Albany DVD are both being considered by the U.S. Seventh Circuit Court of Appeals.

“The federal courts are going to tell us the answers to these very questions, and we always defer to the federal courts,” Bennett said.

Sirkin agreed with the judge that “it would be prudent to wait for decisions in those two cases.” But Sturgeon said he would prefer that Bennett go ahead and rule. The judge asked the two sides to provide their proposed rulings within twenty days and promised to make his own ruling soon thereafter.

ILB -- Actually, the two cases pending before the 7th Circuit were decided last month -- and both were kicked back to Judge Sara Evans Barker.

Annex Books Inc, et al v. City of Indianapolis was decided Sept. 3rd - see ILB entry here, see also this entry from Sept. 5th. New Albany DVD, LLC v. City of New Albany was decdied Sept. 10th - see ILB entry here, and more here, from Sept. 10th.. Both cases had been pending before 7th Circuit for four years.

The news is worse in this story from Carrie Weil of WAVE 3. About half-way through the report:

During the arguments, Judge Bennett asked repeatedly about two other pending Indiana cases dealing with the operations of adult businesses in Indianapolis and New Albany. In September, the U.S. Supreme Court sent both cases back to the 7th Circuit Court of Appeals for a rehearing. While Judge Bennett seemed content to hold off on a ruling until those cases are resolved, Sturgeon pushed the judge to make a decision now. Sturgeon pointed out that the cases in question deal mainly with stores that sell only books and DVD's and do not operate live entertainment areas as Theatair X does. The judge agreed to do so.

Sirkin believes the cases are relevant and the move could backfire. "I think it doesn't make sense to have him (Judge Bennett) rule before the 7th Circuit really rules. All it's doing is if he rules contrary to us - it's inviting an appeal and all it does is cost taxpayers money."

ILB - It is hard to tell whether the judge and attorneys in this case were unaware of the recent 7th Circuit rulings, or if this is a case of two different reporters not understanding what they were hearing.

Posted by Marcia Oddi on October 21, 2009 08:12 AM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Courts